Local Government and Communities Committee

Meeting date: Wednesday, December 20, 2017

Official Report 705KB pdf

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Common Good Property and Funds

Item 3 is common good property and funds. The committee will take evidence from Craig Veitch of Aberdeen City Council; Andrew Ferguson of Fife Council and the Society of Local Authority Lawyers and Administrators in Scotland; Dr Lindsay Neil, former chair of Selkirk and district community council; and Paul Nevin, who is appearing on behalf of Alasdair McEachan—I apologise if I am pronouncing that wrong. Paul Nevin worked closely with Alasdair on the written evidence that has been submitted. Thank you very much for coming along to give evidence today. I believe that everyone has some short opening remarks to make. Let us start with Mr Veitch.

Hello, everyone. I am Craig Veitch, the property team leader within legal services at Aberdeen City Council. I am relatively new to common good and all the aspects of it, as I joined the local authority from private practice and an oil and gas history only in February 2016. Suffice it to say, it has certainly been a hot topic since I joined. In any of our client services relating to land and property assets, a key question if anyone is looking to sell or lease an asset is whether it will be subject to common good. It is an integral part of what I and my team of five solicitors and three paralegals have to deal with on a day-to-day basis, so I look forward to listening to and contributing to today’s discussion.

In the interests of speed, I have nothing to add, but I am happy to take questions.

That is my kind of opening statement. No pressure, Dr Neil.

None at all. I will be brief. I hope to be able to illuminate further the question of ownership of common good, and to suggest practical measures whereby that can be achieved easily. Secondly, I have always wanted to democratise the common good and restore to the community some control over its common good, and I would be willing to answer questions on that. I should add that I am here representing William Telfer, who could not be here today, but I know what he would want to say. The only other question that has not really been addressed is whether local authorities should be charging common good funds for the work that they do that is governed by the Local Government (Scotland) Act 1973. That is all that I wanted to say. I will illuminate members on any of those questions.

I hope that members are listening and are scribbling notes on those points.

As you said, convener, I am appearing for Alasdair McEachan, whose submission was made in a private capacity. I am representing his view, because I work closely with him in the area of common good. I have been with my local authority for more than 10 years. I am happy to give my own personal view, and what I believe to be the views of our members and of the Moray local public, all three of which are sometimes at odds with one another, and to talk about the three possible options for change of common good.

Thank you very much. I asked for brief statements, and that was absolutely on the money, so I appreciate that. Our first question is from Andy Wightman.

I thank all the witnesses for coming in this morning. Common good is a long-standing issue. I think that it was first raised in the first year of this Parliament’s existence, and it has had limited but ad hoc attention since then. The committee is grateful for all the written evidence that has been submitted. Because of timing and scheduling, we have not been able to get round to an oral session to deal with that until now.

You do not all need to contribute an answer to this question if you do not wish to, because there will be further questions, but I would like to know what key issues in the legal framework surrounding common good, in terms of ownership and administration, you think Parliament should pay some attention to. Can you give us some idea of the consequences of the legal framework as it stands just now, which are less than optimal? I suppose that I am asking whether the current legal framework is fit for purpose.

I saw a flash of eye contact from Mr Nevin, so I will take him first.

11:30  

The current legal framework creates a special status for this small area of property and funds, which represents less than 1 per cent, loosely speaking, of council assets. The legal framework has led to a disproportionately complicated process of administration of common good assets, which means that the cost of administrating them generally far outweighs the value of the asset that is being dealt with. By comparison, the amount of legal time and council resources that are used in dealing with the leasing of industrial premises, for example, is quite small compared with the value of the rental income. In dealing with a common good asset, which is often a small parcel of ground, the resources that need to go into identifying it and establishing whether it is alienable or inalienable—which raises difficult and time-consuming legal issues—are disproportionate to the value of the transaction.

Of course, that does not take account of the value that is attached to common good assets by the inhabitants of the former burghs, who see more than their economic value—they see their local historical interest and reputational factors that perhaps do not have a monetary value.

Do any of the other witnesses want to comment? Do not feel under pressure to.

I think that an awful lot of time is wasted on trying to decide what constitutes common good property and what does not. As I mentioned in my written submission, in the 2003 court case Wilson and others v Inverclyde Council, three judges at the inner house of the Court of Session came to a very clear judgment that was based on what had been said in a 1944 case that Mr Ferguson will be familiar with, because it is mentioned in his book. That judgment, which the judges all agreed on, was so clear that it is not necessary to haver and fight about what is common good and what is not.

There will be some exceptions. To sort them out, I propose having greater involvement of local people in the management of a local common good. That way, such questions could be argued over, discussed and decided at a much lower level without having to involve the entire council and all its staff in the expensive chasing of documents and whatnot.

I am broadly in agreement with Dr Neil and Mr Nevin. As Mr Wightman says, the issue has come up again and again. It involves a disproportionate amount of time.

As I said in my submission, as far as definitions are concerned, there are two issues. There is the issue of what is and what is not common good, which Dr Neil mentioned. The other is the abstruse academic question of what is alienable and what is not alienable. That matters because it determines whether the local authority has to go to court. I have included in my submission some recommendations for doing away with the second of those definitions. When local authorities want to do something, there should be a simple and transparent process that involves consultation and engagement with the local community. That should be a simple and straightforward process so that everybody is clear about how such properties can be dealt with.

I recognise what Dr Neil said about the case law, but the problem is that the case law is always capable of a wide range of interpretation. That is great fun for lawyers, but it does not move the process forward that much.

The current legal framework is not perfect. I think that the way forward might be to introduce some straightforward legislation that sets out a definition and a simplified disposal process that involves proper consultation, because at the moment it takes up a disproportionate amount of time. Earlier, the committee spent some time looking at local government finance. The areas that deal with common good in local authorities are the back-office functions, and we all know what happens to back-office functions in the current budget climate—they are squeezed more than the front-line services. It is not as if the resources to deal with such issues are growing.

Mr Veitch, do not feel obliged to speak if you feel that the issue has been suitably covered, but do you want to add anything?

Yes. As I work in a local authority, I always try to look at things from the perspective of the people we serve, and our client services are the same—they look to deal with and manage the assets as best they can.

To reiterate the comments of Dr Neil, Mr Nevin and Mr Ferguson, there is now a raft of case law and lots of judicial commentary on the previous law. We have a great opportunity to codify several of the judicial authorities and, as I said, to include the issue in the community empowerment legislation. It is about the consultation of community bodies when we decide whether to alienate common good land. If we had everything in the statute book on what common good is and how it can be disposed of, and if that was linked to the consultation process that has been introduced through the Community Empowerment (Scotland) Act 2015, that would be a great step forward.

In response to the question whether the rules that define common good are adequate, the Law Society of Scotland and Alasdair McEachan basically say no. There is an interesting comment from Neil King, who I understand is a retired solicitor. He says:

“I can’t emphasise strongly enough that merely codifying the common law rules in statute won’t make these uncertainties go away.”

That is because we still need to investigate every case on its merits, which is often the challenging bit. That situation means that a lot of land is just left abandoned and unused, because people can never get round to doing that.

On the flip side, the situation also ties up a lot of time. That happened even here in Parliament with the City of Edinburgh Council (Portobello Park) Bill, which went through last year as a consequence of a dispute raised by residents who claimed that the land involved was common good. The City of Edinburgh Council accepted that it was common good, but that question was never put to a court and I suggest that, had it been, the court would probably have found that the land was not common good. Nevertheless, the Parliament had to go to an awful lot of bother passing a specific piece of legislation just to allow a school to be built.

Neil King goes on to say:

“The only way to make these problems go away is to have a definitive register”.

In other words, the definition of what is and what is not common good is based on case law but in statute it would be about whether something is in a register. Obviously, some time would need to be allowed to ensure that everything that people want to be on the register was on it. However, at a certain point in time, if something was not on the register, by statute it would not be common good. Various solutions are suggested, but is that the kind of approach that might help to give clarity in future?

That does not form the basis of Mr McEachan’s submission, which I am talking to, but I read Mr King’s submission, and I think that it is an excellent idea. As you say, to define or codify—as Mr Veitch said—common good will not solve the problem, because there will still be argument. If we had a code that said that if something was not bought for a statutory purpose, is not in a trust and was formerly owned by a burgh council, it is common good, that might be the definition, but it would then have to be evidenced and, as you say, that is where the difficulty is.

It is certainly a solution to have a register with an end date, after which if something is on the register, it is common good, and if something is not on the register, it is not common good—end of story. However, getting to the point at which that register is complete will involve lots of cases with the Lands Tribunal for Scotland. That will involve cost and time. I think that Mr King suggested 10 years until the register is closed, but we recognise that completing the land register of Scotland is going to take 10 years, so that is a short time when we consider how long the issue has been a problem.

A register is not one of the solutions that I am talking to, but it certainly is a solution. I am not sure whether it would be accepted by the public, because there will be on-going argument. However, if there was an end date, it could definitely work.

I agree that we should have a register. There should be sufficient time—10 years or five years or whatever—for it to be compiled. However, it should use the inner house ruling as the start point and anything that falls outside that or is in dispute could be disposed of at a local level. That is why I advocate increasing the number of local people involved in the common good administration. You would get free service from them and it would not cost the way it does today to investigate these things. We have done that in Selkirk already and it works.

How do our other witnesses feel about the idea of getting a register and having a cut-off date?

I suppose that having a register will help and the consultation in terms of the 2015 act will help to thrash out some of the arguments that people have about particular properties. At the end of the day, a judgment call will have to be made on some properties, and the question is whether it is then accepted that that is the decision and we can move on or whether it just goes round in a big circle and starts all over again.

The community empowerment legislation is a great opportunity for communities to take things on. I say this as someone who comes from Glenrothes rather than an old burgh, but there is a wider issue about how councils use assets and I think that the community empowerment legislation will help to tackle that. I would not want common good to end up being shunted into a corner, as people have strong feelings about common good property and are proud of the burgh’s heritage, but it is not the complete picture.

Are we left with cut-off dates as the big issue rather than the register, because that will happen?

It is about the confirmation of the register—if it is not done in two or three years or whatever time you dictate, that is the register fixed then.

But I suppose that it is about the general principle. If we said that the cut-off date would be in 30 years, in 29 years and six months there would still be chunks of land out there that people were disputing. It is about the principle of a cut-off date, irrespective of when that date is set. I am just trying to get a sense of whether everyone accepts that there should be a cut-off date.

With all these things, if you do not set cut-off dates, they just roll on and on and there is no focus and there are no targets, so I agree with that principle.

What is difficult, especially for the larger local authorities such as Aberdeen City Council, is the number of titles to be examined—we have several thousand individual titles that would have to be examined. Some will be obviously common good but, with others, we will have to delve into not only the title deeds but council minutes from the 1800s and 1900s, and check with archivists. If we are to do that with a relatively slim legal team, in the face of the current budget restrictions and the resource and cost cutting that is going on in all the local authorities, setting an early target date will make it extremely difficult for a number of authorities to achieve that target.

I know that the completion of the land register is a different topic, but there is already pressure from the Government for public land to be registered by 2019, so adding a further burden in the form of the common good register will put even more strain on our authorities and our departments.

That is obviously about timescale and resources. Before other witnesses come in, I am conscious that this is Mr Wightman’s line of questioning, so I will just pass it back to Mr Wightman.

I have just one final question on management. Dr Neil talked about what is going on in Selkirk. Given that the Local Government (Scotland) Act 1973 provisions were put in place to protect common good in response to pressure from town councils, which wanted some protection for those assets and got it in the 1973 act, do you think that, in general terms, there is a case for allowing local communities to regain ownership of those assets if they so wish?

On the specific point about the Community Empowerment (Scotland) Act 2015, we have a problem with the provisions that allow asset transfer requests to be made. I know of at least two cases in which asset transfer discussions have begun that relate to common good property and the local authorities have said that they will have to go to the courts. In other words, common good law is getting in the way of the intent of that part of the 2015 act.

11:45  

If the matter is devolved to a local area, people will volunteer to help the established councillors. Between them, they will be able to sort out what is common good property and what is not. If they do not agree, I presume that it would fall back into the council’s hands. That way, with a cut-off date, we will get a register. If people do not make a case for an asset to be common good before that date, with the input of equal numbers of elected councillors and local people so that nobody can bulldoze anybody else, that will be it: the register will be done—end of story.

I endorse Mr Wightman’s comment about asset transfer requests. I picked that point up in my submission, I think. If the Parliament is going to legislate on common good, it should tie the two together so that there is no doubt that, if an asset transfer request is made, you do not have to go through the provisions of section 75 of the 1973 act.

I entirely agree that there should be a closing date for the register. However, Mr Wightman was not talking about that alone; he was talking about whether the list is a definitive legal definition of what is and is not common good. I agree that it would be a more useful register if it was.

Local management of common good assets would be the second-choice solution. It would be a good solution to transfer them to local trusts, community councils or people with local knowledge. The disadvantage of that remains knowing what we are transferring. We are still stuck with the question of what is common good.

You have already talked about the financial burdens that local authorities face in keeping the records of common good assets. We have also touched on the Community Empowerment (Scotland) Act 2015. Will it give help and guidance on improving record keeping? Do you still maintain that the financial burden for the local authority will be heavy?

The 2015 act’s provisions on setting up a register are perfectly sound and are there to be implemented. You have heard from our local authority colleagues that it will be a big job to do. Once it is done, it should not be that difficult to maintain the register. Fife Council has already gone through the process voluntarily, so I know that a massive input of resources is needed at the start. Once the register exists, the input is not huge. However, there is a big lump of work to be done.

Because of the constraints that councils face, is it reasonable to expect them to do all that or will they put the work on the back burner because it is not a major priority?

The issue is the timescale. It is about how long you will give us to do it, to be frank.

How do you anticipate that councils will produce the register? One way would be to have a cut-off date in 10 years’ time. I assume that a local authority will trawl through assets that the council owns and that it suspects are, in practice, common good lands and properties. Therefore, as it goes through an area, if it does not put land on a common good register, it is saying in effect that that land is not common good. That can be done before an artificial cut-off date.

Could local authorities take a phased approach whereby they create different geographical zones and track one zone after the next, working out what should be common good and transferring assets into a common good register as appropriate, and then deeming everything else within that area as not being common good? Do we have to do this with a big bang cut-off date in 10 years’ time, or could we do it incrementally?

It could be done incrementally, but to simplify the whole process and avoid further argument and discussion, it could be done by having a cut-off date and involving local people. A lot of administrative work will be unnecessary if local people have had an opportunity to claim what is common good, and then if something is not on the register at the end of that time period, it does not belong to the common good—end of story. That is what I am trying to get across.

That is a fair point.

Your suggestion of a phased approach is a good one, convener. In the case of Moray we have 11 former burghs—it is hard for a Northern Irish man to say that word—and we already know that some have more common good than others. If we took a phased approach, we could look at each former burgh area for six months or one year and it would make the task more bite sized. That might let us have a better focus and make the work more manageable. Then it would be less likely for people to take the attitude that they do not have to do it for another nine years, so they end up leaving it until the final year before they start.

And then they would come to a successor committee and say that they do not have enough time, resources or expertise in the local authority area to deliver it, which would be my concern.

One of the requirements would be good-quality community consultation. A local authority’s decision on whether land is or is not common good, using whatever set process it might have, would involve community engagement. However, in some areas community councils are a lot more vibrant and active than in others. There are natural campaigners in some communities but not in others.

Where is the incentive for local authorities to do really good-quality community engagement, and what should that look like? On the flip side of that question, will some local authorities have a self-interest in having some lands not appear in the common good register? If there is a conflict, how could it be resolved? This is not my area, so I apologise if that question does not stack up, but it occurred to me after looking at the papers.

There is still a residual knowledge within communities as to what belongs to the common good and what does not. If decisions were questioned, they could be looked at. The point is that if decisions do not get questioned and the deadline occurs, then fair enough—it is not common good.

But something could be set in common good—I am thinking of Glenconner park in my constituency, although I do not know whether it is common good. I think that the hold that Friends of Glenconner park has over that trust to the city lapses this year and it will revert to the city and its wider developmental plans. We have a local regeneration group there that is quite focused on what that land should and should not be used for and will be very attentive to that, along with local housing associations and a variety of others.

However, there will be lands elsewhere where that skill set just does not exist or where, decades later, what land was or was not used for will be a distant memory for most people. How do we ensure that local authorities do proper community engagement in relation to that? Something could be held in common good but the community is completely unaware of it—it would not be on their radar. Are there any more thoughts on how to do that community engagement?

There is a really positive outcome when local authorities consult their local communities properly. I totally agree with Dr Neil. Particularly in the bigger local authorities, with the changeover of staff over the years, nobody knows their own local area. In Fife, there are 26 former burghs. Even if someone has been in the local authority for as long as I have, it is often only a particular area—of central Fife, in my case—that they know quite well, whereas the people in the local communities generally know a lot of their history. There can be really positive outcomes from consulting properly.

Obviously, guidance can help us with how to carry out a consultation and an awful lot of work has been done on what a good consultation should look like in various contexts, so, in itself, that should not be that difficult.

There are other cases in which a community has strong feelings about a particular asset. Common good is sometimes part of the equation in those cases but the community empowerment powers now give communities greater power to take things into their own hands if that is what they want to do. Again, the issue is part of a wider landscape.

For the benefit of those who do not know, I note that, in 1907, officials under Lloyd George—I think—went through every property in the land and assigned ownership to each of them. One can find maps of these things—you can get them at West Register house—and use them to track what was once upon a time common good land. You are not going to suddenly find things that are not on those maps. We have done a good proportion of the work, and it can be done elsewhere. We are able to identify common good property at a point in time.

The convener asked a question that I do not think that we answered, which was whether there is any advantage to a local authority not finding an asset to be common good. The honest answer has to be yes. If the council finds that an asset is common good, particularly if it is inalienable common good, we have to go to the courts to change its use or to sell it. Further, if we sell it, the proceeds must go into a common good account, which has a special status, and not into general coffers. I hope that local authority lawyers who deal with the definitions of common good are not worrying on that basis, but I can say that it would be beneficial to the council if a piece of land was not common good.

With regard to consultation, there is a difficulty because, as the convener said, although there are council areas that have very involved inhabitants who know a lot about the local history and are extremely interested in common good and would, therefore, engage in consultation, there are other areas that do not have such inhabitants, which means that the common good land could be overlooked. The consultation process in those burghs might have to begin with education to raise the awareness of what common good is and what it could be in that particular area. That might have to be done before you are able to get meaningful buy-in to a consultation process.

I suspect that that is where the tension comes from with regard to local authorities—I do not mean that in a bad way. Once you raise that awareness, you create a demand and an aspiration. That leads to issues of bureaucracy and time consumption for local authorities, which have to manage all of that. If no one responds during a statutory consultation, that is one thing. However, if you leaflet an area, knock on a few doors and hold a public meeting that 20 folk come to, you then get community activism that might challenge some of the actions of the local authority. There is an issue about where the incentives and disincentives sit in relation to that.

I have a specific question for Mr Ferguson—[Interruption.] I apologise; I seem to be losing my voice.

In your submission, you talk about disposal, which relates to what Mr Nevin said about disputes. I think that the point that you are making is that the procedure could be simpler and that one of the ways in which it could be made simpler is through the establishment of a land tribunal. Could you expand on that?

In terms of disposal, currently, either a council decides that something is not that part of the common good that needs court approval, in which case, it goes through the usual internal processes—either through a committee process or a delegated process. In that case, there is still an obligation to consult the community, but everything is fairly straightforward. If the council decides that court approval is needed, the matter can be taken either to the sheriff or the Court of Session. My submission details the pros and cons of each course of action, but neither of them is particularly accessible for a community unless, as the convener said, the community is a thoroughly organised and focused one that is used to taking on these kinds of things.

In my view, if such a case comes up, the legal issues are pretty straightforward. What it comes down to is the best interests of the community and I do not really see why a highly paid sheriff is needed to decide that. If a lower tribunal could deal with the issue more efficiently, I would have thought that that would be in the best interests of the community and the council. That would de-legalise the process a bit.

12:00  

Does any other panel member have a view on that?

Aberdeen City Council is considering a court petition in relation to property at Union Terrace Gardens, which is in the heart of the city centre. The proposals have already gone through full council and approval has been given to go ahead, but we have had to spend several thousand pounds on a counsel opinion just to confirm that we should go for a petition. We are going to have to do all the petition work, despite the fact that the proposal will clearly benefit all the citizens of Aberdeen. It will involve a lease of part of the recreational ground for coffee shops and retail, so it will benefit the community.

As Mr Ferguson said, do we have to have a highly paid sheriff to decide what should just be common sense? I support what Mr Ferguson has said.

At the risk of keeping common good complicated, I want to reflect a recent experience that Moray Council had. We applied to the sheriff court to release inalienable common good—a former burgh chambers, which is really special common good—and it was pretty painless. It was a summary application to the sheriff, which was dealt with quickly. It was done well, because there was a good consultation and there were no objections.

Much as I would like to see such cases not having to go to the sheriff court, there have been some pretty straightforward experiences. It is not that hard.

Dr Neil, do you want to add something?

You mentioned whether the approach should be based on community councils or something else. Community councils are generally attended by the local elected councillors for the area. It would be a simple thing to tack a management committee on to the end of a community council. It would not involve additional staff of the local authority. I do not foresee big expenses and staff costs being involved in order to carry out a democratisation of the common good back to the local area.

Could I just pick up that point with Dr Neil? The other issue to do with legalities that I was interested in relates to Live Borders. I think that you are saying that there are no local people from the burgh on Live Borders. Perhaps you could talk us through that.

The management of the common good fund should be done by people from the local area, whether that is councillors or whatever. Live Borders is a separate organisation that is not governed by common good law and there are no defined representatives from each area where common good has been taken over. The organisation has not taken over the whole common good, just parts of it. It is a mish-mash and it does not conform with the original diktats of common good law, especially the old 1491 one, which is delightfully simple.

Our deputy convener could be an expert on the 1491 common good law, but we will not press her further because she will only get embarrassed.

The Borders has traditions such as the common ridings and all the rest of it, and some quite large areas of land are held in the common good. In Selkirk, a lot of work has been done to improve the administration and management of the common good. Edinburgh, Glasgow and Aberdeen are, however, big cities. I am just wondering how management could be placed in the hands of local people when, in effect, local people in the city of Edinburgh for example are represented by one council.

You do not have Selkirk town council any more, so there is a sense in which you are wanting to take back control in Selkirk instead of leaving it to the bigger entity. How might we improve administration in the cities, which still have unitary authorities?

Does Edinburgh not have localised community councils?

Yes—it probably has 20 or so.

If the system is based on them, they will know their own area, and it could be put to them to identify what is or is not common good. I presume that their meetings will be attended by their local elected councillors, so it would be easy to tack a discussion of the common good on to the end—or, indeed, the beginning—of a community council meeting.

We will leave that hanging, I think.

One of the most complicated areas is that of disposals, which leads to petitions to the court. We are talking about the difference between alienation, disposal and appropriation, between inalienable and alienable and so on. As the author of a book on this topic, Mr Ferguson, you will know all too well that any such definitions have not yet been agreed. You have hinted at this already, but should we, as part of any reform, look to simplify the process of how we decide whether, for example, a park in Edinburgh should be used for a school, which will involve an appropriation; whether a long lease of 50 years should be given to a business for a bit of land by the River Clyde; or whether a former city chamber should be sold to someone else? Should all those processes be subject to a much simpler—though no less transparent—procedure to ensure that people do not have to grapple with complex legal questions with regard to whether something is an alienation or a disposal?

In short, yes. All those issues are terribly interesting to those who want to write a book about them, but I think that, to an extent, the community should have just as much input into something that turns out to be on the alienable side of the fence as into something that is inalienable. Obviously certain really key things, such as former burgh chambers, fall into that category but, at the end of the day, they are all part of the common good.

You have made a good point about the cities. You can have a localised community council dealing with a particular asset in its part of Edinburgh, but it all ends up in one pot and one fund. I do not want to speak for my city colleagues, but I think that there is an issue with getting input from all the smaller parts of what are, in the case of the cities, quite big communities.

Where do we go from here? Does Parliament need to do something more on this question, or is the iterative process of tweaking definitions, the disposal regime and so on a little bit every five years or so adequate?

That is a great question. What would you change, and how could we make those changes?

I would like to change section 104 of the Community Empowerment (Scotland) Act 2015 by adding local people to the same number as elected councillors to ensure that there is equality in the local management of common good. At the moment, it just refers to any member of a body that has been approved, but a number should be put on that.

Does anyone else have any suggestions about what they would like to change, or does anyone want to put to us as policy makers what they think could be done differently?

Common good should absolutely be abolished; parity should be created with ordinary council assets; and the normal democratic process that all of us in unitary authorities work within should be used to call councils to account in selling or not selling—or in leasing or not leasing—land. It is a hangover from the past, and it is archaic. It is historically interesting—I love working with it and indeed have enjoyed doing so for the past 10 years—but it is really not a modern form of government.

That leaves us in a very odd place in this evidence session, given our discussion about cut-off dates and common good registers, but it is certainly a very challenging view.

I will let you back in, Mr Nevin, but I will take Mr Ferguson first.

I would probably not go quite as far as abolishing common good—to be quite frank, you are not going to get a lot of votes that way—but I do think that you need to simplify things. We need to do away with all the archaic distinctions between alienable and inalienable, create a simpler disposal process for local authorities and align the system with the rest of community empowerment to ensure that communities are involved in decision making. I suggest that you look at that in formulating policy.

Okay. I will take Dr Neil in a second, but I want to give others a chance to come in.

I just wanted to make a short point, convener. [Interruption.] I am sorry—I lost the thread of what I was going to say.

My question was whether Parliament needs to act or whether we can just let things drift.

We can come back to you, Mr Veitch. I will take Dr Neil next.

All I want to say is that, if you abolished common good, you would immediately face a riot in Hawick, and I do not think that that would be a very good thing.

Does anyone here represent Hawick? If not, I will move to Mr Veitch.

I just wanted to say that we would want the common good procedure to be simplified, mainly with regard to disposals and appropriations. The 1973 act refers to “a question” arising with regard to a local authority’s right to dispose of certain common good land. A chapter of Mr Ferguson’s book focuses on that very question, and simplifying the procedure in that respect would help everyone.

I have a brief question that I want to leave to the end, but do you want to follow up on any of that, Mr Wightman?

This issue comes up in Parliament every three to four years on average, but it always gets put on the too-difficult pile, mainly because Parliament and its committees have a lot of business to get through. With what urgency should we act on this matter? Does Parliament need to act soon—say, in this parliamentary session? This committee needs to come to a view about what to do. We could easily sit in private session after this meeting and agree that the issue is a bit too difficult and not really a priority. I want to get a sense of the priority that should be attached to reforming this area and whether, if the issue is one of simplification, that job should not be too complicated in itself—notwithstanding the fact that there will be arguments about how simple it would be to abolish common good altogether.

Short of abolishing common good, which I agree with Mr Ferguson might not get you votes—

Not in Hawick, apparently.

I fully agree that we must avoid riots at all costs, convener.

I agree with my colleagues that definitions of alienability—which is another difficult word for a Northern Irishman—should be abolished. All of that nonsense should go, because it has no place in modern law.

However, something that the committee could recommend and which could be done as a quick fix—indeed, it has already been discussed—is making the register legally definitive. That would be easy to do. It would not come without dispute, but it would involve consultation and bringing the local community with you. We are going to spend what I agree with my colleagues will be a lot of local authority time and resources on creating a list that will still be disputed; after all, common good is and always will be a controversial area. Having a list with a cut-off date after which you could say, “If it’s on the list, it’s common good; if it’s not, it isn’t” would be a simple thing that the Parliament could do and would mean that we would not have to come back to the issue for, say, another five or six years this time. Of course, if we abolished it, we would never have to come back to it.

You are welcome back any time, Mr Nevin.

Never mind abolition—I think that you should bring in sections 102 and 104 of the 2015 act as soon as possible and, if possible, extend section 104 to include more people who could act locally in the management of local common good.

I agree with all the points about having a register in place.

When you talk about “bringing in” section 102, do you mean highlight its terms? I understand what you are saying about section 104, but what do you mean by “bringing in” section 102?

With regard to section 102, I am agreeing that we need to decide what constitutes common good fund property.

Okay.

12:15  

We are coming to the end of our evidence session, but for the sake of clarity, I note that section 102 of the 2015 act establishes a common good register. However, it is not a definitive register. Just because something is not on it does not mean that that thing is not common good. You might get an extra degree of protection if the item is on the register, but even then, witnesses seem to be arguing for a more streamlined process for disposing of that land for community benefit. That might provide a degree of additional protection, but as Mr Nevin has pointed out, having greater protections for some public asset land and not for other such land might lead to inequality. That is why he has suggested that we should just abolish the lot and put in place reasonable protections and processes for the disposal of all community asset land. Have I captured the situation accurately, Mr Nevin?

I think that you are spot on, convener. I would also point out that we have had common good registers before—the burgh councils had them. As Mr Ferguson says in his book—I agree with him entirely—just because something is on an old burgh council common good register does not mean that it is common good. This is the 21st century, and we are creating registers again. They were not definitive in the past, and they are not going to be definitive today.

I wonder, then, whether a key question for our committee is what difference it makes for the disposal of community assets if they are on the common good register.

Finally, I want to move us a little bit away from what we have been talking about. The committee is about to look at the Planning (Scotland) Bill, one of the key features of which is the development of local development plans every 10 years instead of every five years. That might provide a huge opportunity for us to focus our minds if the drive is to have these kinds of lists so that we can do audits and so on.

The bill also contains provisions for promoting communities’ local place plans. When communities decide to pursue such plans, should local authorities then have an obligation to carry out an audit of the land within the boundary of that area in order to assure themselves about what is or is not common good? Does the bill that the Parliament is about to consider provide a natural opportunity to do that sort of thing separately, instead of taking a big-bang approach?

I had not thought about the Planning (Scotland) Bill, its provisions with regard to stretching LDPs to 10 years and the idea of place making. I think that all of that sits well with the issue of common good assets. I am not sure how you would tie everything together, but it is part of the wider picture of local authorities and communities looking at how things are put together and at where common good assets sit in that respect and asking, “What is the best use for this?” They might well say, “Let’s not put this in the too-hard pile any more—let’s look at it as part of our overall plan for these communities.” In that respect, I would agree with you.

Going back briefly to Mr Wightman’s last question, I would say that there have been one or two nips and tucks to legislation on common good over the years. Frankly, you have weightier things to talk about, and I suggest that, this time round, the committee should simply look at what can be done to simplify things and then just leave the matter be.

I will bring in Mr Nevin, but I want to signpost that everyone else will get the opportunity, if they wish, to make some closing remarks. I therefore suggest that you marshal your thoughts.

I do not know about the rest of the committee, but my take-home message from this is that the issue is not whether something is on a common good register. I mentioned the Planning (Scotland) Bill because the issue is actually how communities shape the assets in their areas and how they can mould and shape the types of communities that they want and how land is used, irrespective of whether in 1907 some Prime Minister pointed at a bit of land and said, “That’s common good” or “That’s not common good”, or said “You own that” or “You don’t own that.” I am not sure how democratic the process back then was compared with today’s democratic standards with regard to communities shaping the environment in which they live.

That is my take-home message, but if the witnesses think that I am wrong, they should tell me so in their final comments. Mr Nevin, I will let you go first.

Like Mr Ferguson, I had not thought about your local development plan suggestion, but it is certainly a good idea. The other benefit that it might have is that you get more community engagement with local plans, because communities can see that they are about what is going to happen in the reasonably immediate future to schools, housing et cetera in their area. It is therefore likely that more people will engage with the consultation on local plans, and if those plans also deal with common good issues, you might catch people who might otherwise have not involved themselves in a consultation that was purely on common good.

Thank you. Because we went from left to right for the witnesses’ opening comments, I will go from right to left for their closing comments. Dr Neil is next.

There is still a chance for ministers to direct how the 2015 act should be implemented under sections 103 and 105. In other words, there are opportunities to refine the act even though it has gone through, and I would advocate doing that as fast as possible.

As for the map from 1907, that would identify to people only what had been common good land. Very often, these are parcels of land or whatever that are overlooked today. That is the value of it.

Convener, you have helped me shape my own thinking on where I would suggest that the committee go on this matter. It is about common good being part of a wider place-making agenda—I think that that is a very good phrase to use in this respect. The register will help to flush out difficulties, and once local authorities have it, it will be there for people to access. It will not end all the arguments, but at least something will have been put in place.

At the end of the day, though, community involvement is the crucial issue. As I have said, this is part of the wider landscape of community empowerment and the involvement of communities through the Planning (Scotland) Bill, if that legislation comes to pass, and the community empowerment legislation in decisions on particular assets. That will go beyond burgh boundaries and will involve other communities.

All that I would say in my closing remarks is that, as we have been teasing out towards the end of the discussion, the Community Empowerment (Scotland) Act 2015 and common good as it has historically been are not sitting perfectly together. The Parliament has legislated on community empowerment in asset transfers to allow communities to take back control of certain public buildings that are not being properly used. However, they might hit the buffers of a common good query, and it would be best if we could align ourselves better and tidy up common good legislation.

We have to remember that the law protecting common good was put in place generally to stop the misappropriation of funds by councils, but time has moved on and we now have a lot of legislation and financial regulation controlling councils, which have to get the best value for all their assets. I might not be moving towards suggesting the abolition of common good, but we must look at the issue as soon as possible.

I thank all of our witnesses this morning, and I am sorry that you had to wait before we started the evidence session. I hope that you have got something from this, and we will go back and read the Official Report to see what we can take from the discussion and where we will go next.

That ends item 3. As previously agreed, we will take item 4 in private.

12:24 Meeting continued in private until 13:08.